Abstract
In the tradition of civil law Member States, civil liability issues are linked to the legal entity that caused a damage, with the exception of lifting the corporate veil. The Finnish competition authority imposed fines to Finnish companies that participated in an asphalt cartel. Following that decision, an action for damages was lodged for infringement of Article 101 TFEU that ultimately led to the Skanska ruling. The European judge completes and specifies some ambiguities of the Damages Directive. From a holistic point of view of the objective pursued by both public and private enforcement of European competition law rules, the economic entity of an ‘undertaking’, as it is defined by European law rather than the legal entity as it is defined by national law, must be a substantive criterion, and not a procedural one, in civil liability procedures before national courts awarding damages for European law infringements. Introducing the principle of economic continuity to national civil liability procedures is a creeping harmonisation of national civil law in order to serve the effectiveness of European competition law. The scope of Skanska could also extent to Article 102 TFEU infringements. Corporate restructuring must follow from now on a lengthy and complex due diligence as the acquirers could be liable for their predecessors’ infringements in any Member State.
Highlights
The Court of Justice of the European Union’s preliminary ruling in Skanska1 follows the line of its previous case law regardingYEARBOOK OF ANTITRUST AND REGULATORY STUDIESEXTENDING THE PRINCIPLE OF ECONOMIC CONTINUITY TO PRIVATE... 261 the private enforcement of competition law (Iannuccelli 2014, p. 223–240)
It can be considered to be a landmark case, as it goes a step further in addressing some questions left unanswered by Directive 2014/104/EU of the European Parliament and of the Council of 26 November 2014 on certain rules governing actions for damages under national law for infringements of the competition law provisions of the Member States and of the European Union2, mainly the determination of the entities that are liable under civil law for compensation in actions for damages for breach of Article 101 of the Treaty of Functioning of the European Union before national civil courts
The Skanska ruling can be seen as a creeping harmonisation of national law provisions of Member States regarding civil liability for EU competition law infringements
Summary
The Court of Justice of the European Union’s (hereinafter: CJEU) preliminary ruling in Skanska follows the line of its previous case law regarding. Under the point of view of such a coherent system, both public enforcement of competition rules by national competition authorities (hereinafter: NCAs) of Member States and private enforcement of those same rules under national civil liability proceedings have a complementary role in preserving the effectiveness of European Union’s (hereinafter: EU) competition law provisions, by punishing anticompetitive behaviour on the part of the undertakings as well as deterring them from engaging in such conduct For that reason, it is a matter of European, and not national law, to determine the entities liable to pay damages for EU competition law infringements. The CJEU introduces the autonomous concept of ‘undertaking’ to civil liability actions before national courts of the Member States, and extents the application of the principle of economic continuity, previously used when imposing fines for EU competition law infringement, to private enforcement of EU competition law rules as well
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